Shifting strategies for state abortion battles in 2014

Conservative states that ran into legal trouble passing some of the most restrictive abortion laws in the nation last year have shifted their approach for 2014: smaller instead of sweeping.

Rather than bans that directly challenge Roe v. Wade, many states are again going for more incremental measures that address the physical space requirements of clinics, physicians’ qualifications and the use of certain procedures. The move is hardly a retreat, abortion opponents say, but rather a strategic decision that they expect could be nearly as effective in less time. Compared to broader moves, restrictions that are more narrowly drawn often pass judicial muster.

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“I think the public understands the abortion bans,” said Gretchen Borchelt, director of state reproductive health policy at the National Women’s Law Center. “But they don’t understand how harmful things like regulation of clinics and restriction on medication abortion are to provider practice and to women’s access to abortion.”

Efforts to limit abortion in various ways or at various stages have only accelerated in recent years. Clinics in numerous states have been forced to close, leaving women with few options and energizing abortion opponents.

In 2013, the Arkansas Legislature made abortion illegal after 12 weeks, while North Dakota lawmakers prohibited it after six weeks — a point at which many women don’t even know they’re pregnant. Three states passed 20-week bans, also known as fetal pain laws, bringing to nine the number of states outlawing abortion midpregnancy.

Yet courts subsequently blocked the first-trimester bans of North Dakota and Arkansas, legal fights continue over the bans in other states, and the movement to restrict abortions at 20 weeks — on the grounds that a fetus at that stage of development feels pain — remains highly controversial. Because of those crosscurrents, strategies are evolving. Both sides expect their upcoming encounters to be fought as much over step-by-step actions as big, dramatic approaches.

Developments are certain in state legislatures, the courts and even at the ballot box, a triple front that has many abortion-rights advocates braced. The issue could also factor again into local and congressional political campaigns.

Some approaches will push into different territory, including a Colorado proposal that asks voters to consider an embryo or fetus a separate legal “person” under the state’s constitution in acts of violence against women. This differs from other “personhood” initiatives, which thus far have failed to pass in at least 10 states; its intent is to protect a woman and her unborn fetus by recognizing the fetus as a second victim should she miscarry because of a criminal act. But abortion-rights advocates say the language, backed by a national “personhood movement,” does nothing to discourage violence against women and only complicates such cases.

And a North Dakota measure appearing on the ballot in November takes the concept a major step further, giving an embryo legal rights under any circumstance from the moment of conception. It would outlaw almost all abortions and some forms of birth control. Critics say it would also restrict fertility treatment and stem cell research.

More commonly, however, upcoming efforts will focus on regulations. Their underlying intent, abortion-rights advocates charge, is to systematically end abortions. Abortion opponents counter that the procedure and the places that perform it warrant greater scrutiny to ensure women’s safety.

“This past year was a real watershed moment,” said Charmaine Yoest, president and CEO of Americans United for Life. The public became increasingly concerned about abortion providers being “out of control” and in need of greater regulation, Yoest said, particularly after the trial and conviction of Philadelphia abortion doctor Kermit Gosnell.

A report just released by the Guttmacher Institute, which tracks reproductive health issues, reflects how that concern was manifested. Nearly two dozen states enacted 70 abortion restrictions during 2013, the second-highest annual total ever, according to the report.